Nataraja Iyer vs The South India Bank, thro' their Agent Subbiah Iyer and Another

The question in this appeal is whether the sale, in execution of a decree, of a debt due to the judgment-debtor under a hypothecation bond is

liable to be set aside on the ground of irregularity. It cannot be so set aside, if it is to be regarded, as held by the lower court, as moveable

property within the meaning of Order XXI, Rule 46, corresponding to Section 268 of the old Code. The language of Rule 46, which treats as

moveable property a '' debt not secured by a negotiable instrument,'' is undoubtedly wide enough to cover a debt secured by a hypothecation

bond or a simple mortgage.

But it is contended that such a debt is Immovable property within the definition of such property as given in the General Clauses Act as including

a benefit arising out of land. It may be that a security of this character is a benefit arising out of land but supposing that this definition would show

that a simple mortgage debt would generally speaking be regarded as immovable property, still we have got to see whether the meaning is really

what is contemplated by the provisions of the CPC relating to the execution of decrees.

It seems to us that the provisions of Rule 54, Order XXI, corresponding to Section 274 of the Code of 1882 are not meant to apply to

property of the nature of a debt secured by a hypothecation bond. For instance, as pointed out in Karim-un-nissa v. Phul Chund ILR (1896) A.

134 if the property to be attached is a mortgage debt where the mortgagee is not in possession nor is entitled to possession of the mortgaged

property, the requirement as to the proclamation of the order at some place in or adjacent to the property and the affixing at a conspicuous part of

the property could not be applied. These provisions seem to contemplate that the Immovable property should be in the nature of tangible property.

Further the mortgagee not being entitled to possession, his decree-holder would not be entitled to go upon the land for the purpose of proclaiming

or affixing the order. Then there is another difficulty in the way of holding that mortgaged debt is to be treated as Immovable property for the

purposes of attachment. Rule 54 does not provide for any order prohibiting the mortgagor, that is, the person owing the debt'' from paying the debt

to the mortgagee whose right is sought to be attached and without such an order the object of attachment might be frustrated. Rule 46, on the other

hand provides for such prohibiting order being passed. The fact is, as pointed out in Tarvadi Bolanath v. Bat Kashi ILR (1901) B 305 and other

cases, the security must follow the debt, and if the debt is once attached the benefit of the security would accrue to the attaching creditor if his

remedy against the property still exists.

Much reliance, we may also mention, has been placed on behalf of the appellant on the definition of '' mortgage'' as an interest in Immovable

property as given in the Transfer of Property Act. But the real question, as we have said, is whether it is Immovable property within the meaning of

Rule 54, Civil Procedure Code, and for the reasons we have stated it is difficult to regard it as such. There is some diversity of judicial opinion on

the question under discussion, but we are satisfied that the weight of opinion is undoubtedly in favour of the view we have taken. See Debendra

Kumar Mandat v. Ruplal Das I.L.R (1886) C. 546 Kasinath Das v. Sadisiv Pat-ndick ILR (1893) C. 805 Taravadi Bholanath v. Bat Kashi ILR

(1901) B 305 Karim-un-nissa v. Phul Chand ILR (1893) A. 134 Baijnath Lohea v. Binoyendranath Palit (1901) 6 C.W.N. 5 and Baldev

Dhanrup Matvadi v. Ramachandra Balwant Kalkarni ILR (1893) B. 121. As regards this court, opinion seems to have fluctuated. While Turner

C.J. in Appasawmi v. Scott ILR (1884) M. 5 was inclined to adopt the view which has the support of the majority of the High Courts, the other

two learned Judges favoured a different view. In Sawmi Iyer v. Krishnasawmi ILR (1886) M. 169 the inclination was to support the view taken by

the majority of the Judges in Appasawmy v. Scott ILR (1884) M. 5. In Muniappa Naik y. Subramania Iyer ILR (1895) M. 487 the view adopted

in Debendra Kumar Mandal v. Rup Lai Das I.L.R (1886) C. 546 and Kasinath Das v. Sadasiv Patnaick is expressly approved, though the learned

Judges seem to imply that a sale u/s 268 of the Code of 1882 might be irregular. Achamma v. Basappa (1897) 8 M. L.J. 1 simply follows

Muniappa Naik v. Subramanib Iyer ILR (1895) M. 487 There is thus some uncertainty as to the exact view held by the court on the point under

discussion. But as the conclusion at which we have unhesitatingly arrived is undoubtedly supported by preponderance of authority of the other High

Courts, we do not think it necessary to refer the matter to a Full Bench. The appeal will therefore be dismissed with costs.